U.S. Department of Health and Human Services
200 Independence Avenue SW
Washington, DC 20201
RE: Mental Health Parity and the Mental Health Reform Act
To Whom It May Concern:
The ERISA Industry Committee (“ERIC”) is pleased to submit these comments in response to the Department’s stakeholder input efforts pursuant to the 21st Century Cures Act and the Mental Health Reform Act contained therein.
ERIC’S INTEREST IN MENTAL HEALTH PARITY
The ERISA Industry Committee (ERIC) is the only national trade association that advocates exclusively on behalf of large employers on health, retirement and compensation public policies on the federal, state, and local levels.
ERIC supports the ability of its large employer members to tailor retirement, health, and compensation benefits to meet the unique needs of their workforce, providing benefits to millions of workers, retirees, and their families.
ERIC’s member companies offered comprehensive group health benefits to their employees in compliance with the myriad federal requirements placed upon group health plans subject to the Employee Retirement Income Security Act (ERISA), including the Mental Health Parity and Addiction Equity Act (MHPAEA). As such, ERIC members are keenly interested in the ongoing promulgation and enforcement of mental health parity (MHP) rules, in order to maximize compliance, minimize unnecessary costs and burdens, and ensure optimal health outcomes for the millions of beneficiaries ERIC companies insure.
Every ERIC member company voluntarily offers comprehensive health insurance benefits to their employees and plan beneficiaries, and that coverage universally includes comprehensive mental health and substance abuse benefits, which comply with MHPAEA and the other relevant federal rules and statutes. These plan sponsors do their best to design benefit programs that lead to positive health outcomes for beneficiaries, keep costs under control for both the plan and the beneficiaries, and continually improve quality and performance. Employer- sponsored plans are the bedrock of the American health care system, insuring 178 million Americans. Every effort must be made to protect the stability and affordability of employer-sponsored plans.
Large employers make significant efforts, and significant expenditures of time and resources, to ensure compliance with MHP rules. This often requires consulting with third party experts, verifying compliance with legal counsel, and policing a large array of vendors, service providers, and the like. In the case of plan sponsors who are seeking to ensure compliance, federal agencies should use a good faith compliance standard when enforcing MHP rules. Punishing plans that seek to comply but inadvertently fail in a non-egregious way would not accrue to the best interest of plan beneficiaries, but would instead be likely to have a chilling effect both on innovation and the drive toward value-based insurance design, as well as increase enrollee costs.
There are some factors that are outside the control of plan sponsors, which could cause problems for beneficiaries. For instance, the nationwide mental health provider shortage is a complicating factor, and in certain areas of the country the problem is extremely acute. To make matters worse, providers are increasingly refusing to participate in health insurance networks, which can lead to devastating costs for patients, but is completely outside the control of a plan sponsor. Providers that refuse to accept insurance, whether because they believe the reimbursement is too low (and are not willing to balance bill) or because they simply want to be paid in cash and avoid paperwork, do so to the detriment of plan enrollees, as well as the plan sponsor.
The health system is currently undergoing rapid change, for the better, moving to data-driven improvements and toward paying for value rather than volume. MHP rules must be agile and flexible in a way that enables plans and plan sponsors to incorporate best practices, steerage to centers of excellence, comparative effectiveness data, shared decision-making, quality improvement activities, and other innovations that are necessary to transform the health system. At the same time, MHP must promote rather than hinder the move to alternative payment models such as bundled payments, pay-for-performance, patient-centered medical homes, accountable care organizations, and the like. We urge federal agencies to include a safe harbor to ensure that promotion of these and other strategies to move toward a value-driven health system do not cause a plan to run afoul of MHP rules.
II. EVOLVING RULES AND REQUIREMENTS MUST BE ENFORCED REASONABLY
Over time, various statutory provisions as well as regulations and sub-regulatory guidance like Frequently Asked Question (FAQ) documents have provided “clarifications” to MHP rules. Indeed, it makes sense that over time these rules might need more explanation, to be narrowed or broadened as appropriate for the norms in the health system at a given time, etc.
Plan sponsors believe that the agencies should take a prospective approach to enforcement in cases where additional guidance, statutory or regulatory, was necessary to clarify Congressional intent regarding MHP rules. Plan sponsors are under intense pressure to keep costs under control, and often have to make difficult benefit design decisions in order to keep benefits affordable. If changes are required to make the plan more generous in order to abide by clarifications to MHP rules, plan sponsors will of course do what is necessary to come into compliance. However, it would be unfair, and contrary to the interests of the vast majority of plan participants, to censure or fine a plan for decisions made prior to said clarifications.
Plan sponsors understand and support the rights of patients and providers to understand their benefits, maximize the value of said benefits to plan participants, obtain the information needed to make health decisions and know that their plan complies with relevant rules. At the same time, plan sponsors are concerned that efforts to promote these rights must be carefully balanced against unnecessary litigation exposure.
Some stakeholders believe that it is in the best interest of patients to engage in “name and shame” activities, post enforcement information online, and require copious amounts of information disclosure to invite potential litigants to go through with a fine-tooth comb looking for potential violations. Plan sponsors vehemently disagree with this approach. It is obvious that Congressional intent regarding MHPAEA and the provisions in 21st Century Cures was to protect and improve patient care, not to encourage needless and often frivolous litigation. If money is siphoned out of plans for unnecessary legal actions and/or settlements, this will directly reduce the funds available for patient care, leading to higher premiums, copays, and deductibles for all plan beneficiaries. Further, patient privacy should be paramount regarding mental health, and over-exposure of some information could constitute a threat to that privacy by various routes. As such, the federal agencies should reject calls to publicly shame plans subject to enforcement actions, and confine disclosure requirements to the data directly needed by patients and providers.
President Trump has been clear on his objective of providing regulatory simplification, and the 21st Century Cures Act included numerous provisions aimed at making requirements clear to patients, plans, providers, and others.
As such, federal agencies should continue efforts to bolster clarity on what the MHP requirements are, and how to ensure compliance with them. Plan sponsors need to be able to take simple steps that can confirm compliance with MHP rules.
There are a number of areas in which confusion continues, even all this time after full implementation of MHPAEA. For one thing, non-quantitative treatment limitations (NQTLs) continue to confound plans and patients alike. Clearer explanations and compliance guidance from the agencies could be helpful regarding NQTLs. There are also numerous treatments some patients are seeking, but data is lacking to affirm the efficiency and effectiveness of the treatments, including (but not limited to) certain residential substance abuse programs, so- called “wilderness therapy,” autism applied behavior analysis (ABA) therapy, and some treatments considered experimental. Federal agencies should clarify that MHP requirements do not force plans to cover treatments of unproven value or medical efficacy.
It is also imperative that plan sponsors be able to maintain national uniformity of the benefits that they provide. Some ERIC member companies provide benefits to workers and families, or have operations not only in every state, but in every major city and Congressional district. As such, it is imperative that their benefit program is protected from a patchwork of requirements that could differ based on where an employee or their family lives, works, or receives medical care. The requirement to comply solely with federal law should continue and be strengthened at every opportunity.
Additionally, plan sponsors are already required to bury beneficiaries in all manner of paperwork and disclosures, some of which may be critical, but much of which is likely unnecessary, ignored, and wasteful. As the agencies promulgate additional MHP guidance and regulations, all effort should be made to reduce reporting requirements, reduce or streamline notices and disclosures, and move into the 21st century by allowing all disclosures to be delivered electronically unless a beneficiary has mitigating circumstances.
ERIC appreciates the opportunity to provide feedback at this time. We believe the comments laid out above will enable the agencies to approach MHP in a way that maximizes value to patients without exposing them to unnecessary costs or risks to their privacy. If you have questions concerning our comments, or if we can be of further assistance, please contact us at (202) 789-1400.
James P. Gelfand
Senior Vice President, Health Policy